In March, a Supreme Court ruling in the cases of Cheshire West and P&Q, effectively lowered the threshold for what constitutes deprivation of liberty in care.
In doing so it significantly increased the number of people requiring assessment for protection under the Dols scheme, which covers placements in care homes and hospitals. The ruling places a major strain on best interest assessors (BIAs) as councils struggle to meet statutory deadlines to authorise ‘urgent’ cases in seven days and standard cases within 21 days.
The ruling has also led to a significant increase in deprivation of liberty cases in settings not covered by the Dols, notably supported living. These require authorisation by the Court of Protection but cases are generally brought by local authorities, placing an additional strain on councils.
We caught up with two local authorities to hear how they are responding to the pressures brought by the change. Below Is Solihull council’s approach.
The impact on Solihull in numbers
- Average Dols referrals per month pre-Cheshire West: 6
- Average Dols referrals per month post-Cheshire West: 46
- Dols referrals in 2013-14: 77
- Projected Dols referrals in 2014-15: 800
- Projected cost of additional activity generated by ruling: £400,000 per year
- Number of case carrying Best Interests Assessors: 8
The impact on Solihull in practice
Solihull council has been hit hard by the Cheshire West ruling. A report shows that, as of 9th July, 77 of 213 referrals for Dols assessment had not been allocated to a BIA due to a lack of capacity.
The council was finding it “impossible” to meet statutory timescales for Dols assessments, including for urgent authorisations. The backlog of work was also impacting safeguarding teams as case carrying BIAs were diverted to Dols work.
The council has set out an action plan designed to get them “back on track” with Dols referrals by the end of this financial year. Key steps include:
- Setting up a dedicated Dols team, staffed by 2 full-time best interests assessors has been set up to work exclusively on Dols.
- Agreeing a change in policy so that case carrying BIAs can conduct Dols assessments using their own time as paid overtime, rather than TOIL.
- Purchasing places for 10 social workers to train as BIAs on a course running in January as part of plans to train a ‘significant number’ as BIAs that will ensure they are located across the whole service.
- Securing independent BIAs to carry out assessments of people in small homes
- Starting talks with their independent mental capacity advocacy provider over increase in advocacy provision. The council estimates its demand for advocates will rise five-fold.
- Training all support planning staff on the impact of Cheshire West and the need for assessment of people deprived of their liberty outside of settings covered by Dols, e.g. supported living and shared lives schemes.
“We’ve set our stall to get to where we need to be by the course of the end of the financial year. That accepts that we’re dealing with a backlog,” explains Ian James, Solihull’s director of adult services.
James says that boosting the council’s BIA capacity – through moves to set up a dedicated Dols team and train significant numbers of social workers up as BIAs – is critical. But equally important is managing demand for their services, he says. The council is talking to residential and nursing home providers, whose “instinct”, says James is to send stacks of Dols referrals to local authorities post-Cheshire West.
“We’re talking to them to say ‘we can’t deal with all of these things at once, we’re trying to manage this over a period of time’. Within that we need to identify those Dols cases that might be contentious, as distinct from people who have been living in settings quite happily and where deprivation of liberty has not been an issue at all,” he says.
“That’s not to minimise the importance of those [uncontested cases]. All people who are having their liberty deprived should have a due process to follow to ensure that it’s appropriate. But given we’ve suddenly seen a ten-fold increase in the number of people that have come within the law, it is impossible to deal with that overnight.”
The sheer scale of demand means Solihull accept that some timescales for Dols assessments will be breached in coming months, says James. The alternative, he says, would have been for the council to deploy lots of social workers from other teams to help clear the backlog, a move that would have created its own risks by depleting other services.
“If I’m balancing risks, say in safeguarding services, against dealing with a backlog of people, some of whom – while it’s an important legal issue – aren’t particularly at risk, then we need to be pragmatic in the way we deal with that,” he says.
“Potentially there’s a legal risk – someone could say we’ve breached the seven day process. At the moment we’re balancing that risk against risks to other parts of service of trying to process everything [urgent Dols authorisations] in seven days and the resource that would have to go into that.”
James said that the additional £400,000 annual cost brought by Cheshire West’s impact on Solihull, comes at a time when £10m is already being taken out of his £55m budget over the next four years. The success of the action plan will be reviewed at the end of the financial year. But with Dols cases subject to an annual review, James believes that the council will need to retain a full-time BIA capacity beyond 2014-15.